Fleming & Curti, P.L.C. - Attempt to Prevent Offspring’s Marriage Outside Religion Fails

AUGUST 25, 2008 VOLUME 16, NUMBER 8

Attempt to Prevent Offspring’s Marriage Outside Religion Fails

Max and Erla Feinberg died in 1986 and 2003, respectively. They left sizable estates in trust for their two children and five grandchildren. Their estates have resulted in a fair amount of litigation, with the most recent issue addressing Max Feinberg’s attempt to control who his grandchildren could marry.

One of Max and Erla’s grandchildren, Michele Trull, filed suit against her father, aunt and uncle. She claimed that they violated their duties as executors and trustees by allegedly conspiring to evade estate taxes and misappropriating millions of dollars from Max and Erla’s estates.

A recent Illinois Court of Appeals decision does not resolve — or even address — those allegations. Instead, it deals with one clause of Max Feinberg’s trust. That provision attempts to encourage his grandchildren to stay true to their Jewish roots. Any grandchild who "marries outside the Jewish faith … and his or her descendants shall be deemed to be deceased for all purposes of this [trust] as of the date of such marriage."

What did that language mean, and why is it important in Ms. Trull’s dispute with her family? If the trust provision is valid, Ms. Trull’s marriage to someone who was not Jewish (and didn’t convert within one year) meant that she and her children would be treated as if they had died. That would mean that she had no standing to complain about the management of the trust, and at least that part of her complaint should be dismissed.

That was the argument raised by Max and Erla’s trustees and executors, Michael Feinberg (Ms. Trull’s father) and Leila and Marshall Taylor (Ms. Trull’s aunt and her husband). In fact, that argument would have disinherited all but one of Max and Erla’s grandchildren, since four of the five had married outside the Jewish faith.

The Illinois trial judge, however, struck down the trust provision in question, and the state Court of Appeals agreed. According to the judges, Max Feinberg’s attempt to control who his grandchildren might marry was invalid because it violated public policy. It would be just as offensive, according to the judges, as including a provision encouraging a child or grandchild to divorce a spouse the decedent didn’t like or approve of, or to try to prevent a marriage because the possible spouse was Jewish. Ms. Trull’s lawsuit was not dismissed, and the matter was sent back to the trial court for further proceedings. In re Estate of Feinberg, June 30, 2008.

In a vigorous dissent, one judge argued that all Max and Erla Feinberg were doing was trying to "preserve their 4,000-year-old heritage." In Justice Alan Greiman’s view, discouraging a grandchild from marrying outside their religion should be permissible.

The entire Feinberg dispute has caused controversy among estate planners and within religious groups. Some argue, as did Justice Greiman, that Max and Erla Feinberg should have been free to decide what restrictions they wanted to place on their inheritances, at least so long as they did not actively encourage divorce, or violate anti-discrimination laws. Others point out that a law that permits a grandparent to prohibit marriage outside of a chosen faith could just as easily be used to discourage marriage to someone of that same faith. In fact, other cases testing the same question have involved prohibitions on marrying a "Papist," or a Scot, as two quite different examples.

Within the Jewish community in Illinois (where the case was decided) a significant debate has been brewing regarding the Feinberg holding, and whether it should be endorsed or reversed. An interesting article in The Chicago Jewish News addresses the so-called "Jewish Clause" and its supporters and detractors. The article also provides additional background information on the Feinberg family history and dynamics.

It is unclear whether Arizona courts would agree with the Illinois Court of Appeals decision. No Arizona appellate cases have raised precisely the same issue, or even a question close enough to allow easy analogizing. Because Arizona tends to follow the Restatement of the Law on which the Illinois court relies, it seems likely that an Arizona decision might be similar -- but the precise language and facts might well generate a different, or even opposite, result. Interestingly, the recent release of an updated version of the Restatement of the Law, Trusts, the particular topical volume involved, Arizona has not yet had time to develop much history or precedent on the applicability of the new release.